So now that we’ve had (if not yet heard) oral arguments in King v. Burwell, the Affordable Care Act’s second round at the Supreme Court, what have we learned about where the justices stand on this stunningly consequential case? Not all that much, I would say. Court watchers have developed a relatively predictable script for how the justices are supposed to act, and yesterday the justices were intent on performing their assigned roles. (Transcript here.)
The four liberal justices—Justices Breyer, Ginsburg, Kagan, and Sotomayor—rallied together yet again in the face of the latest conservative assault. They went after the plaintiff’s lawyers right from the start. Among the four, Justice Kagan distinguished herself once again as a particularly effective and charismatic presence on the bench.
Leading the conservative sympathizers with the challenge to the ACA were Justices Scalia and Alito. Justice Scalia was his usual pugnacious, sarcastic, and funny self. When he asked with faux naiveté why Congress can’t just fix the problem with the statutory language, the Solicitor General responded, “Well, this Congress ….” getting some laughs from the audience, many of whom were members of Congress. Justice Alito demonstrated why he has earned a well-deserved reputation as a forceful, incisive questioner, effectively pressing the government on various points. He also submitted the possibility of softening the dramatic consequences of a ruling against the government, suggesting that the Court might delay implementation of its ruling so as to allow time for the affected states to respond.
Justice Thomas was silent, as usual.
Justice Kennedy played his undecided swing justice role to the hilt. He asked skeptical questions of both sides, making sure that he made clear that his vote was up for grabs and ensuring that he had the full attention of the lawyers and the press.
Chief Justice Roberts fulfilled his role by not doing much of anything. He aspires to be the Court’s statesman, standing above the fray. Usually an active questioner, yesterday he was a mostly silent observer.
So there was plenty of drama, but not many surprises. We’re left about where we were before oral arguments: it still seems highly unlikely that the Court is going to rule against the government and tear apart the ACA, but there is clearly strong support among the conservative justices for the challengers’ arguments.
It would seem to me that Chief Justice Roberts betrays both how he’ll vote and what he really believes by his silence. If he believed that the subsidies were meant only for blue states, he would have asked questions to insure his legal view got argued. The same for if he believed subsidies were meant for all Americans. Since upholding subsidies for all Americans will anger the right wingers who he represents, he’d want to ask questions that would bring to light how obvious this argument is and thus prove he must rule in favor of all Americans being eligible for subsidies. However, if he really does believe all Americans are eligible for subsidies but has already decided he must rule against them (to please his masters . . . ummm . . . conservatives), then he wouldn’t want to ask any questions. I find my analysis cynical and chilling and pray I am WRONG!